Cozens v. House ( 1840 )

Curiaj per

Butler, J.

By our law, according to approved decisions, the writ may be referred to as a part of the record, and hence, the declaration should conform to and be consistent with it. A material variance between them would be fatal to the action. As'a general rule, the declaration should retain the names and the relation of the parties, as they are stated in the writ. But there are cases where the name of a party may be dropped from the declaration, that had been included in the writ; as in Caldwell vs. Harp, (2 M’C. R. 275,) where the plaintiff had brought an action against two, on a joint and several demand, and had declared against one. By looking at the writ, it appeared that but one of the parties had been served, so that but one, in fact, was sued. In such case, it was held that the plaintiff might discontinue as to one and proceed against the other, without making different parts of the record inconsistent. If it had appeared, in the case under consideration, either by the writ," or by suggestion in the declaration, that the defendants were husband and wife, the declaration against the husband alone would have been good; because the record would have explained itself. This, however, does not appear, and there is a departure, in the declaration, from the writ.

DeSaussure for the motion ; Black c)- Arthur, contra.

It is unnecessary for us to say what would have been the precise legal effect of the variance, if it had been properly taken advantage of. There is no doubt that advantage of ft could have been taken by special demurrer. (Young vs. Gray, 1 M’C. R. 201.) This might not have defeated the action; but only have arrested it, so as to enable the plaintiff to amend his proceedings. We think the defendant was properly denied the right of excepting to the defect, on a motion for a non-suit, after having pleaded to the declaration ; for the plea denied the defendant’s liability according to the allegations of the declaration, without reference to the writ.

Motion dismissed;

Gantt, Evans and Earle, JJ. concurring.